Dan’s Comments

Nope, don't know who you mean, and wouldn't trust you to accurately characterize him or what he said in any event. But who he is doesn't really matter, as the rest of your comment is nonsensical.

In order to prevail, Shiva (not Mike) must show a number of things by clear and convincing evidence:

"Shiva is a liar" is a statement of (claimed) fact, not of opinion--this is where he lost at the district court

"Shiva is a liar" is false

At the time he said "Shiva is a liar", Masnick knew that statement to be false

Your argument above is that since people of good will can interpret the same facts in different ways, it's impossible to say Shiva is a liar, because instead he's simply interpreting the facts (specifically, the facts which show conclusively that he did not invent email) in a very special way (most often associated with one or more diagnoses out of the DSM-V) that makes him believe that he did invent email.

I first disagree with your premise in that you're claiming that people of good will (and at least ordinary intelligence, and sound mind, though you've left those unstated) can draw any conclusion from any set of facts. The law routinely concurs when it throws out jury verdicts, holding that no reasonable juror could have reached X conclusion from Y evidence.

But even leaving that aside, what's good for Shiva is good for Masnick as well. If Masnick can't legitimately say that Shiva is lying, neither can Shiva legitimately say that Masnick is lying--which means he can't prove the third point above, which means he loses.

Ah, so no, the Obama administration did not set judicial policy. And no, decisions from Obama appointees haven't been reversed at a markedly higher rate than decisions from judges appointed by any other president--not that that (or anything else in your comment) has anything to do with "judicial policies set by the Obama administration."

And in case you forgot, the judge (F. Dennis Saylor) who correctly threw out Shiva's case before it got to the jury was appointed by Bush, not Obama.

Wow, the President sets policy for the judiciary? I guess I'll have to re-read my Constitution--I thought the Executive and the Judiciary were two of the three independent branches of our government.

No, lots of stuff never goes to a jury, and shouldn't go to a jury. And disposing of the case before it goes to a jury is the primary way of handling it "easily, quickly, and cheaply." That's why Shiva resoundingly lost, easily, quickly, and (relatively) cheaply. And why he'll lose again on appeal, except it won't be cheap for him when the First Circuit decides that California's anti-SLAPP law should be applied.

Apparent authority is a lot more nuanced than that, but even as presented, you lose--no "reasonable third party" would interpret "Techdirt Insider" the way you're claiming to. This doesn't even survive a 12(b)(6) motion. So sorry, no discovery for you.

Don’t you think that giving people a “badge” and having their posts appear with the “Insider” decal establishes the speaker as an agent of Techdirt?

Um, no. No, I don't. The suggestion is so nonsensical that I don't think it warrants anything other than the Billy Madison response. A "Techdirt Insider" is someone who gives money to Techdirt, and in exchange gets a warm fuzzy feeling, a badge when they post, and a few small perks with their subscriptions.

I mean, that’s what I infer when I see those things.

I doubt it. But if that's true, you need to spend quite a bit of time with a mental health professional. Or you simply haven't the foggiest clue of what an agent is.

The operator of a platform has a First Amendment right to decide what will appear on that platform, and it does not matter in the slightest whether that operator is an individual, partnership, corporation, LLC, or any other form of entity. You have a First Amendment right to speak, but not to use someone else's private property (e.g., Facebook, or Techdirt) to spread your message. If that operator doesn't like your message, they're free to stop you from spreading it on their platform.

"Probable cause" requires (in principle) strong reason to believe that evidence of a crime will be found in the subject premises. "This law requires us to investigate" does not translate into "we have reason to believe that evidence of a crime will be found." If that's all the cops had, no warrant should have been issued.

Without exception, they admitted that they didn't have probable cause. No PC, no warrant. So, despite your apparent belief that a dead baby is automatic probable cause of a crime, none of the law enforcement personnel involved agreed.

Do you differentiate between releasing information to a journalistic outlet and providing it to a hostile government?

Why would you draw this distinction? If you release it to the press, it will quickly make its way to the readers, who will include foreign governments (friendly and hostile). And make no mistake, disclosing classified information to a friendly government (without the appropriate clearance, need to know, etc.) is just as much a violation as to a hostile government.

Sure, I understand the difference. But there isn't a legal difference. The Fourth Amendment applies to "searches" (and seizures, but those aren't relevant here), and watching what happens in public (whether inadvertently or deliberately) isn't a search. There's no constitutional requirement for probable cause, reasonable suspicion, or even so much as a hunch for an officer to personally follow all your public movements for years. Should there be? Maybe, but that's a different question.

...and it's an incorrect (or at least incomplete) statement of the law. Don't think it should be that way? Fair enough, and I might agree, but the Fourth Amendment has been rendered nearly dead letter by the War on (some) Drugs.

What you do in public is, well, public. Anyone can observe it, anyone can record it, and you don't have any reasonable expectation of privacy in it. And "in public" is the key--so far as has been shown so far, everything in this program deals with observing subjects' public behavior.

So far as I know, there's no precedent holding that surveillance of a subject's public activities implicates the Fourth Amendment in any way--but I'd be interested to see any.

This is the second time you've said this without any explanation of why you believe it's so. Care to explain, or is this just an example of "anything I don't like must be unconstitutional"?

No, the Fourth Amendment isn't implicated, so long as everything that's being observed is in public (which, from both articles, appears to be the case). Unless there's some indication that people were targeted for speech or religion (and you've shown none), the First Amendment isn't an issue. You could say that putting the Air Marshals on planes at all violates the Third and/or Fifth Amendments, but that would apply equally to the entire Air Marshal program. So where's the constitutional violation?

Note, I'm not defending the program. It sounds thoroughly stupid and pointless, like just about everything else TSA does. But that doesn't make it unconstitutional.

...but Adobe is perfectly capable of redacting completely, if you do it right. "Highlighting" in black, of course, doesn't do it (and it sounds like that's what they did here), but there's a redaction feature there that works very well.

Yes, I'm commenting without reading the whole thing (yet). But there's something you repeat about CDA § 230 that I don't think is right. You say section 230 "encourages" platforms to moderate. No, it doesn't--nothing in section 230 encourages, motivates, or in any way leads platforms to moderate. The most it does is to remove a disincentive to moderate, that being the position of some courts that moderation made a platform liable for whatever appeared there. Removing a disincentive does not provide affirmative encouragement.